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The e-Discovery Ostrich: Keeping Your Head Above the Sand

By David Jones

E-discovery is a term that almost everyone is now familiar with - several high profile court cases over the past few years have made sure of that. When an e-discovery mandate hits your organisation, you could have as little as six weeks to comply. That's six weeks to discover, hold and extract potentially tens of thousands of documents and files. It's also six weeks of highly stressful project management at best, six weeks of thinly veiled chaos at worst. So do you start to plan for e-discovery now – or put your head in the sand and try and ignore it?

Research from AIIM shows that over half (53%) of organisations feel that the biggest potential issue from any governance failure is the risk of excess litigation costs or damages. This far outweighs concern about the actual infringement of industry-specific compliance regulations (26%). It also extends to e-discovery, where the prospect of being investigated is not the main issue or concern; the actual process of performing e-discovery is the more costly and worrying matter. And acting as an e-discovery ostrich won't get your company anywhere fast.

Electronic discovery is the use of information technology to collate all of the organisational content required for civil litigation, and it typically begins with a mandate issued from a general counsel (GC) or assistant general counsel (AGC) from within the organisation. At this stage the six-week countdown starts, and for many, an untested and confusion-riddled e-discovery process begins.

E-discovery starts with legal discovery. This involves a team of lawyers identifying the information assets that may be relevant to the mandate and tagging that information to be placed in "legal-hold." Though this sounds simple, it actually places significant challenges on an unprepared organisation - both from an IT and an operational perspective. Information sources must be identified, catalogued and made available for immediate analysis, all the while ensuring that nothing changes in that data.

AIIM research identifies that the legal discovery process takes an average of 17 days for paper-based records and 12.4 days for those operating electronic records management systems. Companies performing legal discovery on electronic documents not in a records management system took an average of 25 days to execute.

The legally-held information is then extracted from the enterprise content management (ECM) and records management (RM) systems, and is likely to include both electronic and paper-based information. Information is typically mined using a dedicated document review software platform, and then analysed using a series of techniques, often known as digital forensics.

The e-discovery process places a high-level of stress on the people executing the order, especially given that the general counsel within an organisation often thinks that the process starts only when their mandate is issued. Effective e-discovery management should start well in advance of any mandate.

Planning for e-discovery is like planning for disaster recovery. Everyone knows they should have regular backups, disaster recovery policies and staff well-versed in both of these - but most businesses don't. Failure to plan for disaster recovery can lead to fatal consequences for organisations when disasters do strike. Though failure to plan for an e-discovery mandate may not be quite as severe, advance planning can make the whole process a lot easier to manage, less stressful, and, most importantly, less costly to perform. This is an area where expert advice from experienced practitioners can help, as can a managed electronic data restoration service.

There are also a number of simple concepts that can greatly assist in your e-discovery planning:

1. Consolidation of information sources

The e-discovery process typically requires information from numerous sources, some electronic, some physical paper records. Having these information sources in one location, or at least accessible via a single federated search mechanism, makes working through the legal discovery process, the actual exercise of performing legal-hold and then the extraction of content to the document review software much more straightforward.

Having these systems in one place in-house can be challenging. Outsourced records management experts can be utilised - in this case offsite document scanning and archiving not only delivers benefits such as reduced in-house storage and online access to scanned documents, but also provides the basis for a faster, cheaper, and easier e-discovery operation.

2. Properly tagged metadata

Metadata matters! Efficient tagging of content as it is filed, stored and archived can significantly speed up the e-discovery process - whether the searching is being done manually or electronically. Again, planning is required - as is a well thought out taxonomy and metadata classification scheme. This makes the tagging process easier to execute and facilitates fast retrieval of data directly from the metadata.

Building this into a digitisation process works well, whether in-house or as part of an outsourced operation.

3. Managed e-discovery solutions

AIIM research has shown that over half of organisations (53%) are still reliant on manual processes for e-discovery searches across file shares, email and physical records.

A managed data restoration service can help organise and manage your electronic data so that when there is an e-discovery request, you'll be ready quickly and at a lower cost.

4. Systems testing

The key to any e-discovery solution is to test it regularly. By doing this you can ensure your systems are not only effective, but that your staff know how to operate them - unless of course you are using an outsourced provider for a managed service, in which case that company will be regularly testing its systems on your behalf.

E-discovery often induces ostrich-like ignorance – the "bury your head in the sand and deal with it when it arrives" approach. This can be at least partially attributed to the GC or AGC issuing the mandate – and then thinking that their work is done. While the arrival of an e-discovery mandate will never be the most pleasant of experiences, but planning and investing in external experts can make the process run more smoothly. The cash-strapped AGC or GC should be spearheading any internal initiative to make the e-discovery process more effective. Optimising retention and management processes of both paper and electronic records is an excellent place to start. So take your head out of the sand. It's time to let that e-discovery ostrich persona go.